Changing the focus from disability to ability

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As disability is the leading ground cited in human rights complaints, the OHRC continues its work to bring systemic change for persons with disabilities across Ontario. We will only have succeeded when everyone can use their abilities, instead of falling behind because of disabilities. Our actions in the past year ranged from critiquing government regulations to intervening at the Supreme Court of Canada and educating employers, service providers and the public.

A better Building Code

As part of its work to implement the Accessibility for Ontarians with Disabilities Act (AODA), the Government of Ontario is proposing amendments to the barrier-free requirements of the Ontario Building Code regulation. Changes affect such areas as renovations, paths of travel, vertical access, adaptable design and construction, visual fire alarms, washrooms, and use of educational materials and resources.

Over the years, each new edition of the Building Code regulation has advanced accessibility, and this draft version continues that trend. In its March 2013 submission to the Ministry of Municipal Affairs and Housing on the proposed changes, the OHRC included some ongoing concerns, along with some recommendations to further advance accessibility.

Recommendation highlights included:

There should be at least some time-specific “retrofit’ requirements such as restaurant chains phasing in accessible washrooms on a barrier-free path of travel from the main entrance. Current and proposed accessibility requirements only come into effect when the obligated organization decides to undergo new construction, extensive renovation or change-in-use of a building or one area of a building

The proposed increase in proportion from 10% to 15% of accessible suites in multi-residential buildings may be inadequate, and requires further review

Visual fire alarms and visual emergency notification systems should be required wherever a fire alarm or emergency notification system is required.

Disabled people are confronted every day by huge systemic barriers. They’re things that had they been thought about at the time when the system of communication or the building or the employment systems were put in place, would not have cost any significant amount to address. But because no thought was given to the inclusion of persons with disabilities at the planning stage, suddenly you’re in a situation where the only way into a building is up a flight of stairs or going in the loading dock in the back with the garbage bins and so on.

Improving accessibility out of doors

In October 2012, we wrote to the Ministry of Community and Social Services to comment on proposed changes to the Integrated Accessibility Standards (IASR) under the Accessibility for Ontarians with Disabilities Act (AODA).

We saw some significant gaps and limitations, and made recommendations such as:

Apply the standards to small organization

Shorten the timelines for meeting the requirements, and start the requirements much sooner so that no new barriers are created

The standards should set out a direct obligation to maintain accessibility features in working order and provide information on disruptions

Provide accessible slopes and ramps for changes in elevation

Add high colour contrast text, and solid characters and text and font standards to sign requirements, and have these requirements also apply to electronic signs

Add a direct requirement to provide curb cuts and depressed curbs where appropriate

Include employee facilities and other specialty vehicle parking in the standards

Do not limit requests for accessible education and library resources to students.

Making elections more accessible

Physical barriers too often prevent people from voting and having a say and a role in their government. For several years, the OHRC has called for changes to make Ontario’s electoral process more accessible for people with disabilities. We continued this work in 2012 by meeting with Elections Ontario and providing advice as they look at alternative voting methods involving internet and telephone voting.

In a December submission, we wrote in support of these forms of accessible voting as well as the eight electoral principles Elections Ontario identified: accessibility, one vote per voter, vote authentication and authorization, only count votes from valid voters, individual verifiability, voter privacy, results validation and service availability.

The electoral principle of “accessibility” recognizes that persons with disabilities should be able to vote without assistance. This principle should also include the human rights principles of inclusive design, respect for dignity and accommodation of individual need. Inclusive design means the ideal goal should be that as many people as possible, with and without disabilities, can use the same voting technology and procedures (on-site or remotely), recognizing that some people with disabilities may still need a different accommodation.

We also discussed how the other electoral principles have implications for people with disabilities. For example, voting mechanisms and procedures must allow voters with disabilities to verify their vote selection themselves in privacy. Persons with disabilities should also have access to the same service availability and convenience as others voters. They should be able to vote using accessible equipment on voting day, not just at advance polls. Ideally, persons with disabilities would be able to use remote voting technology on voting day as well.

Other recommendations to Elections Ontario included:

Changing provisions of the Election Act to allow use of on-site accessible voting equipment on polling day, not just in the advance poll period

Maximizing inclusion and accessibility for proving identity (for example, procedures that rely only on a paper-based postal registration process can cause barriers for persons with vision loss, learning and other types of disabilities)

Designing the website interface for internet voting inclusively and to meet international website accessibility standards

Piloting remote voting technology as soon as possible, ideally in the next by-election

Conducting a post-pilot survey of electors with and without disabilities, to learn about their experiences and any barriers they faced using the alternative technology

To reduce the time for putting more accessible technologies in place, removing the restriction on piloting alternative methods only in by-elections, and instead using selected ridings during regular elections

Resolving the longstanding accessibility barriers that electors, nomination seekers and candidates with disabilities face at all stages of our electoral process (examples are inaccessible facilities, meetings, debates and information during nomination and campaign periods).

The OHRC will continue to provide advice and encourage a more accessible electoral process for Ontarians with disabilities.

Overcoming economic barriers: Garrie v. Janus Joan et. al.

People with disabilities face serious economic barriers as well. The OHRC intervened in a case where the Human Rights Tribunal of Ontario was asked to reconsider a decision not to award a woman wages. This case involved a woman with an intellectual disability, who had worked alongside employees without this disability, doing the same job. The difference – they were paid minimum wage, while she was paid $1/hour. The HRTO ruled that the woman’s termination was discrimination because of disability, but it could not consider lost wages because it did not see this as a continuing act of discrimination. Reconsideration was granted, and a decision is pending on the alleged wage discrimination.

A meaningful education for all: Moore v. British Columbia (Education)

This case at the Supreme Court of Canada involved a student who alleged discrimination in education services because he was not given appropriate accommodation for his severe dyslexia. We intervened to argue that the area of “services” in human rights codes should be given a broad interpretation and that to prove discrimination, people who need accommodation because of a disability do not have to show they were treated worse than people with other disability needs.

In its November 2012 decision, the Court adopted our arguments and found that Jeffrey Moore was entitled to meaningful access to the same education all students are entitled to. To prove discrimination, he did not have to compare his accommodation with that of other students with disabilities, but instead compare to the services received by all students. The Court confirmed the duty to accommodate to the point of undue hardship. It found that Jeffrey Moore was not given enough accommodation to allow him equal access to the education system. Without having considered the alternatives for managing its finances while still providing accommodation for students with disabilities, the school board was not able to show that this failure was justified. We are working with people with disabilities to use this decision to advance inclusive education.